Most people are aware that a legal Last Will and Testament states precisely how an individual wants his or her material possessions distributed after their death, but many people are unaware of the importance of having a will. There are many advantage of having a will, including saving time, money, and, as we will see, saving the property itself for the use and enjoyment of future generations. Due to historic problems with fractionation, this is especially true for those who have interests in trust property.

If you do not have a will, your property will pass to your heirs through intestacy laws. Intestacy laws can differ slightly in each jurisdiction, but basically they divide your estate among your spouse, if any, and your surviving children. Intestacy laws substitute the judgment of the State or Tribe for the deceased.

People have different reasons for creating a will. One of the most common and important benefits a will can provide is allowing you to name a guardian for your minor children. A will also allows you to consider the individual needs and circumstances of your family. For instance, if one of your children is disabled and your other children can provide for themselves, you may want to assure that your disabled child has an extra source of income or extra assets in the future. Having a will allows you to control who gets your property after you have passed on.

Once trust land passes to a non-Indian, it loses its' trust status
and is again subject to state and local taxes

If you own trust land, you may be concerned about keeping the land in trust. Once trust land passes to a non-Indian, it loses its' trust status and is again subject to state and local taxes. Thus, if you are married to a non-Indian and your lands pass to your spouse by intestacy, the lands may lose their trust status. A well written will can avoid this problem and still provide for your spouse to have an interest in the property during his or her lifetime.

Whether you have interests in trust or non-trust property, a will can help avoid estate fractionation. If you die without a spouse and do not have a will, it is true that the court will divide your estate among your surviving children. This often results in property fractionation because the court does not usually physically divide the land. If one child wanted actual possession of the property, he or she would have to lease or buy the other children's interests. If you have more than one property interest, leaving a will assigning your children specific land plots may help avoid this problem.

If you are interested in creating a Last Will and Testament, you will need to know the answers to several questions. You will need to know where all of your trust property is located. including any interests in trust property located in another state or on another reservation. You should know whether other people have ownership interests in your trust property, and whether there are any leases that affect your trust property. You should also determine whether you currently live on trust property, whether you have any interest in your house if it is located on trust property, and whether you lease trust property which you do not own or have any interest in. Finally, you should determine to whom you wish to give your property.

The Bureau of Indian Affairs provides free will preparation services for Native Americans who have interests in trust property. Any will the BIA prepares for you will not include your non-trust property. The BIA recommends that attorneys prepare wills for Native Americans who have extensive non-trust property. For more information, you can contact the BIA - PORTLAND AREA OFFICE
Bureau of Indian Affairs
The Federal Building
911 NE, 11th Ave
Portland, OR 97232
Phone: 503-231-6702 Fax: 503-231-2201

This article is provided as a public service by the Indian Law Office of Wisconsin Judicare, Inc., for informational and educational purposes only. This article is not intended to constitute legal advice or replace the need for personal legal counsel. Wisconsin Judicare is a non-profit legal services organization located at 300 Third St., Suite 210, Wausau, WI 54403. To determine whether you are eligible for the Wisconsin Judicare program, please call 1-800-472-1638. (return to top)